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| High Court sets aside 10-year jail terms of two in 807-gram heroin case | | |  Early Times Report
JAMMU, Oct 9: The High Court of Jammu & Kashmir and Ladakh has set aside the conviction and 10-year rigorous imprisonment awarded to two persons in an alleged 807-gram heroin recovery case, holding that material contradictions in prosecution evidence and failure to establish compliance with mandatory safeguards under the NDPS Act rendered the conviction unsustainable.
Justice Sanjay Parihar, while allowing the criminal appeal filed by Mohammad Shafi Lone and Bilal Ahmad Dar, observed that the prosecution had failed to establish beyond reasonable doubt that the contraband was recovered from the appellants in the manner alleged.
The Court quashed the judgment of conviction dated May 24, 2023, passed by the Additional District and Sessions Judge, Kupwara, in FIR No. 45/2020 registered under Sections 8/21 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
Both appellants had been sentenced to 10 years of rigorous imprisonment and fined Rs 1 lakh each, with an additional two-and-a-half years of imprisonment in default of payment of the fine.
As per the prosecution, the Anti-Narcotic Task Force (ANTF), Kashmir, intercepted a vehicle at Bramri Chowk, Drugmulla, Kupwara, on December 10, 2020, following specific information regarding transportation of narcotics.
The prosecution claimed that 435 grams of heroin were recovered from Mohammad Shafi Lone and 372 grams from Bilal Ahmad Dar during their personal searches allegedly conducted in the presence of an Executive Magistrate.
However, the High Court noticed serious inconsistencies in the prosecution's version, particularly regarding the actual place from where the contraband was allegedly recovered.
The Executive Magistrate, who had been associated with the search and seizure proceedings by the prosecution itself, categorically stated during his testimony that the two polythene bags containing contraband were recovered from the vehicle rather than from the personal possession of the accused.
The Court observed that this contradiction struck at the very foundation of the prosecution case and could not be brushed aside as a minor discrepancy.
It further noticed that the alleged consent forms relied upon by the prosecution to establish compliance with Section 50 of the NDPS Act neither bore the signatures of the accused nor had been duly proved and exhibited as substantive evidence during the trial.
The Investigating Officer admitted that the signatures of the appellants were not obtained on the consent memos and that no civilian witness was associated when the accused were allegedly offered the option of being searched before a Magistrate or Gazetted Officer.
Another prosecution witness categorically stated that no such option was given to the accused.
The High Court held that the mere physical presence of an Executive Magistrate during search proceedings could not substitute proof that the accused had been properly informed of their statutory rights under Section 50 of the NDPS Act.
The Court also found fault with the trial court's reliance on the statutory presumption under Section 54 of the NDPS Act, observing that such presumption could not be invoked unless the prosecution first established the foundational facts of possession and recovery through reliable and legally admissible evidence.
It observed that although the forensic examination confirmed the presence of diacetylmorphine (heroin) in the samples, the laboratory findings could not independently establish that the contraband had been recovered from the appellants in the manner alleged.
The Court emphasised that the gravity of an offence under the NDPS Act could not dilute the standard of proof required in a criminal trial.
Referring to Supreme Court judgments in State of Rajasthan v. Parmanand and Arif Khan v. State of Uttarakhand, the High Court reiterated the importance of strict compliance with statutory safeguards governing personal searches under the NDPS Act.
The Court observed that material contradictions concerning the source of recovery, coupled with deficiencies in the alleged consent documents and conflicting witness testimonies, created reasonable doubt regarding the prosecution's version.
It held that the trial court had failed to properly appreciate these contradictions while recording the conviction.
Allowing the appeal, the High Court set aside the conviction and sentence awarded to both appellants and acquitted them of the charges by extending the benefit of doubt.
The Court directed that Bilal Ahmad Dar, who was in custody, be released forthwith unless required in any other case or under a lawful detention order.
It further ordered that Mohammad Shafi Lone, who was already on bail, stand discharged from his bail bonds.
(JNF) |
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